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ANTHONY COSTA v. COMMONWEALTH PENNSYLVANIA (06/29/77)

decided: June 29, 1977.

ANTHONY COSTA, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Anthony Costa, No. B-130102.

COUNSEL

Jana-Lyn Weisman, for appellant.

Michael D. Klein, with him George O. Phillips, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Blatt. Dissenting Opinion by Judge Mencer.

Author: Wilkinson

[ 31 Pa. Commw. Page 8]

This appeal arises from a decision of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee, which found claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

[ 31 Pa. Commw. Page 9]

Claimant was last employed as a mailroom attendant, a job which he had held for approximately eighteen months. His last day of work was March 21, 1975. It appears from the record that on claimant's last day of work, while carrying out his job duties, claimant, for no apparent reason allegedly called his supervisor a liar. His statement was made in front of an entire office of employees. On the basis of this conduct and two prior incidents for which claimant had been reprimanded, claimant was discharged from his employment. Claimant then applied for unemployment compensation and was found eligible by the Bureau of Employment Security. Claimant's employer appealed this decision and the referee found that claimant had used abusive language toward his immediate supervisor and thus was guilty of "willful misconduct." On appeal to the Board this finding was affirmed. We agree.

Claimant raises two issues on appeal for our consideration. First, whether or not there is substantial evidence to support the findings of the Board; second, whether claimant's conduct (verbally abusing his supervisor) is "willful misconduct" as a matter of law.

Claimant argues that the findings of fact of the Board and referee are not supported by substantial evidence. The basis of this argument is that the testimony as to the alleged statement by claimant is hearsay. While this is true, claimant neglects the fact that he himself corroborated the hearsay statements.*fn1

[ 31 Pa. Commw. Page 10]

It is axiomatic that hearsay statements which are not objected to*fn2 and are corroborated by competent (non-hearsay) evidence are given their natural probative effect.*fn3 Thus, the combination of the hearsay and claimant's own evidence are substantial competent evidence on which the referee could base a finding of fact.

Claimant further argues that his conduct does not constitute "willful misconduct" as a matter of law. Surely there is no argument that calling a supervisor a liar would qualify as an abrasive, vulgar, or offensive remark. While this Court has stated certain abrasive, vulgar and offensive remarks are not "willful misconduct" this has generally only been where the remark is justifiably provoked and it is de minimis. Unemployment Compensation Board of Review v. Boff, 24 Pa. Commonwealth Ct. 571, 357 A.2d 694 (1976); Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 316 A.2d 110 (1974). There is no ...


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